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In re Quackenbush2/13/1996
California Court of Appeals
No. B088737
1996.ca.1
February 13, 1996
IN RE DANIEL A. QUACKENBUSH ON HABEAS CORPUS.
Super. Ct. No. SM88744. Santa Barbara County. Original Opinion of January 18, 1996,
ORDER MODIFYING OPINION AND DENYING REHEARING
THE COURT:
It is ordered that the opinion filed herein on January 18, 1996, be modified in the following particulars:
1. Page 1, second sentence, should read as follows: We hold the section does not dispense with the Fourth Amendment requirement for obtaining a search warrant in all cases.
2. Page 4, add a last sentence to the partial paragraph at the top of the page. It will read as follows: The trial court did not abuse its discretion.
3. Page 5, last paragraph should read as follows:
There is no doubt that exigent circumstances may justify a warrantless seizure. (See U.S. v. Lingenfelter (9th Cir. 1993) 997 F.2d 632, 640.) Here, however, neither the Legislature, nor the Department of Public Health, nor the local officer has found every dog bite to give rise to such exigent circumstances that a seizure of the dog is deemed necessary. To the contrary, State Department of Health Services regulations provide for isolation of a biting animal "at the discretion of the local health officer . . . in a place and manner approved by the local health officer . . . ." (Cal. Code Regs., tit. 17, § 2606, subd. (b) (2).) It is only when an animal has rabies or exhibits the clinical symptoms of rabies that isolation in a pound, veterinary hospital or other adequate facility is required. (Cal. Code Regs., tit 17, § 2606, (b)(1).)
4. Page 6, first full paragraph is being replaced with the following two paragraphs:
If Quackenbush had initially refused to produce the dog, he would have been in violation of the statute. In such a case he would have prevented the animal control officer from making a determination whether the dog could be quarantined at Quackenbush's home or whether it should be taken into the officer's custody.
Even upon first seeing a dog, the local health officer in most instances would be empowered to take it into his or her custody without first obtaining a warrant whether or not the dog exhibits rabies. That however, is not the issue before us. The facts under this case are more narrow. In the exercise of his discretion, the health officer determined that the dog could be safely quarantined at Quackenbush's house. The officer still had the discretion to seize the dog at a later time and place it in quarantine elsewhere. But under these circumstances, the health officer must first obtain a warrant in the absence of exigent circumstances or consent.
5. Page 7, second full paragraph should read as follows:
There are few circumstances where a special need of the government is so compelling that it justifies dispensing with the traditional Fourth Amendment protections. This is not one of those circumstances. Unlike the situation in Love the government official here has discretion. The Department of Health Services' regulatory scheme does not require local officials in every instance to seize a biting dog that does not exhibit symptoms of rabies. This belies the notion that the government had a compelling special need to seize the dog from the Quackenbush's home without a warrant.
This order modifying opinion does not change the judgment.
Appellant's petition for rehearing
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